Calloway v. California Department of Corrections and Rehabilitation et al

Filing 17

FINDINGS and RECOMMENDATION to Dismiss Case for Failure to State a Claim, signed by Magistrate Judge Michael J. Seng on 8/7/17. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JAMISI JAMES CALLOWAY, 11 12 13 14 Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., CASE No. 1:16-cv-01305-DAD-MJS (PC) FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO STATE A CLAIM FOURTEEN DAY OBJECTION DEADLINE 15 16 17 18 Defendants. Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. 19 On January 18, 2017, the Court dismissed Plaintiff’s complaint with thirty days 20 leave to amend. (ECF No. 12.) On February 6, 2017, Plaintiff filed a motion for 21 reconsideration of the Court’s screening order. (ECF No. 13.) On April 26, 2017, the 22 District Judge assigned to the case denied the motion for reconsideration and directed 23 Plaintiff to file his amended complaint within thirty days. (ECF No. 14.) On July 24, 2017, 24 no amended complaint having been filed, the undersigned Ordered Plaintiff to show 25 cause why his case should not be dismissed for failure to obey a Court order and failure 26 to state a claim. (ECF No. 15.) 27 28 1 On August 4, 2017, Plaintiff responded with “objections” to the Order to show 2 cause. (ECF No. 16.) It appears Plaintiff wishes to stand on his complaint. See Edwards 3 v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004) (plaintiff may elect to forego 4 amendment). In light of Plaintiff’s election, the screening order, and the District Judge’s 5 review of the complaint on the motion for reconsideration, 6 RECOMMENDED that: 7 8 it is HEREBY Plaintiff’s complaint (ECF No. 1) be dismissed with prejudice and without leave to amend for failure to state a claim. 9 The findings and recommendation are submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 11 thirty (30) days after being served with the findings and recommendation, Plaintiff may 12 file written objections with the Court. Such a document should be captioned “Objections 13 to Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to 14 file objections within the specified time may result in the waiver of rights on appeal. 15 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 16 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 19 IT IS SO ORDERED. Dated: August 7, 2017 /s/ 20 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2

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